Regina v Thomas John Hickey; Regina v Joseph Martin Hickey

[2003] NSWCCA 110

CITATION:	Regina v Thomas John Hickey; Regina v Joseph Martin Hickey [2003] NSWCCA 110
HEARING DATE(S):	25 February 2003
JUDGMENT DATE:	24 April 2003
JUDGMENT OF:	Sheller JA at 1; James J at 2; Smart AJ at 3
DECISION:	1. Crown appeal against the sentence imposed on Joseph Michael Hickey dismissed; 2.(a) Crown appeal against the sentences imposed on Thomas John Hickey allowed; sentences quashed; (b) In lieu of the sentences imposed Thomas John Hickey is sentenced as follows: (i) On the robbery in company of the National Bank, Warrawong to imprisonment for 4 years 6 months commencing on 2 May 2001 with a non-parole period of 3 years expiring on 1 May 2004; (ii) On the TAB Burwood robbery in company to imprisonment for 4 years 6 months commencing on 2 November 2002 and expiring on 1 May 2007 with a non-parole period of 2 years 6 months expiring on 1 May 2005
CATCHWORDS:	Sentences for major robbery in company - when sentences for robberies in company should be wholly concurrent and partly concurrent - proportionality between co-offenders when one has more serious record
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v Henry (1999) 46 NSWLR 346
PARTIES :	Regina v Thomas John Hickey; Regina v Joseph Martin Hickey
FILE NUMBER(S):	CCA 60482/02; 60483/02
COUNSEL:	(A) G Rowling) (T J Hickey) C Craigie SC (J Hickey) R Button
SOLICITORS:	A) S E O'Connor (R) Sydney Regonal Aboriginal Corporation Legal Service

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0271; 02/11/0693
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

60482/02

60483/02

SHELLER JA

JAMES J

SMART AJ

Thursday, 24 April 2003

R v THOMAS JOHN HICKEY

R v JOSEPH MARTIN HICKEY

Judgment

1. SHELLER JA: I agree with Smart AJ.

2. JAMES J: I also agree with the judgment of Smart AJ.

3. Smart AJ: The Director of Public Prosecutions appeals against the sentences imposed upon each of the abovenamed in the District Court on 8 October 2002 pursuant to their pleas of guilty.

4. Thomas John Hickey (referred to as "TJH") was sentenced on each of two counts of robbery in company to imprisonment for 4 years and 6 months with a non-parole period of 3 years, such sentences to be served concurrently. Joseph Martin Hickey (referred to as "JMH") was sentenced on one count of robbery in company, taking into account the offence of steal from the person, to imprisonment for 3 years 9 months with a non-parole period of 2 years 6 months.

The Common Offence

5. About 1.20 pm on 2 May 2001, William Hickey, JMH, TJH and Michael Lesley Payne entered the National Bank, Warrawong and robbed four employees of about $18,904 of Australian foreign currency, the property of the bank. William Hickey and TJH jumped the counter. They demanded that the cash drawers be opened in a confrontation with four female employees of the bank. The other two men stood inside the entrance doors with Payne yelling out some of the seconds as they elapsed and urging William Hickey and TJH to hurry. Payne shouted "come its almost 30 seconds" whereupon the four men left the bank, ran to and entered the getaway car which was being driven by Douglas Young, who had not entered the bank. The men did not attempt to disguise themselves and did not wear gloves. No weapon was used and there was no threat of violence.

6. The getaway car had been purchased for cash by Rebecca Hickey, who was related to TJH and JMH. The judge thought that there was little foresight or pre-planning of this robbery.

Earlier Robbery In Company - TJH

7. About 9pm on Saturday, 17 February 2001 TJH with two other men entered the Burwood TAB. They made their way into the office where two employees were working behind the counter by smashing a wooden door. They searched through the cash drawers behind the counter and other areas throughout the office. They collected a total of $1188.80 and met with another accomplice at the front door of the premises. The four persons then left. The men did not disguise themselves and did not wear gloves. There were no weapons and no threats of violence.

The Offence Taken Into Account - JMH

8. About 1.20 pm on 17 November 2001 the victim was walking in Lawson Street, Redfern. She was carrying her handbag on her left arm. JMH and another male followed her. On the latter saying "Yes" JMH grabbed the victim's handbag. There was a short struggle. She retained her hold on the bag although being on the ground. JMH kept pulling the bag. The strap broke and JMH ran away with the bag. The police were called and attended. The damaged handbag was recovered by an unknown person. $500 in cash and two mobile phones had been stolen. The activities of JMH were captured on closed circuit television from cameras facing west on Lawson Street. JMH could be clearly identified.

Some Common Factors

9. Both TJH and JMH claimed that they were using heroin heavily at the time of the bank robbery and that they committed the robbery to obtain money to buy heroin. The sentencing judge described the case against them as to the Warrawong robbery as "by no means an overwhelming Crown case." The identification evidence was not strong.

10. Both TJH and JMH are Aboriginal people whose family originally came from the Walgett area. Their father moved the family to Sydney to obtain work. They were mainly brought up in Sydney, partly in Redfern and partly in the western suburbs. They went to school but were poor students. The consulting psychologist who has attended both of them has recorded that their father, at one stage, was an abusive alcoholic. The parents separated. Apparently the father returned to Walgett and has since been regularly employed.

11. The family was a large one of three boys and five girls and the mother was greatly valued. When she died both TJH and JMH applied for and were granted leave by the Prison Authorities to attend her funeral. In fact, for reasons of which they were not fully aware they were not permitted to leave Long Bay Gaol. The judge recorded that attendance at the funeral of a mother is particularly important for people in most Aboriginal communities. The judge found that both TJH and JMH had been severely affected by not attending their mother's funeral.

TJH

12. He was born on 26 May 1968. He has an extensive criminal record. Between 1982 and 1986 he had many appearances in the Children's Court and was dealt with for many offences. He spent a lot of time in juvenile justice institutions. Since October 1986 he has frequently been dealt with by the Courts for offences. Indeed, his record reveals that since he became an adult he has received punishments from courts on some 37 occasions. He has been in gaol many times. There have been a multitude of dishonesty offences. There is no point in listing all his offences. Coming to more recent times he received in March 1993 concurrent sentences of imprisonment of 3 years 3 months for stealing from the person and two counts of stealing with a non-parole period of 2 years 3 months. In April 1996 he was sentenced to imprisonment for 4 years with a non-parole period of 3 years for robbery in company. He was released on parole in January 1999. It was a condition of his parole that he attend the Orana Rehabilitation Centre in Brewarrina. He stayed there for about four weeks. He left because there was no structured rehabilitation program: apart from one meeting early in the morning he was left on his own to do whatever he wanted for the rest of the day.

13. He felt that this was not helping him to deal with his drug problem. He went to Walgett to be with his parents. His father, who worked on farms arranged work for him at rural properties, often 20 to 30 kms out of Walgett. He did this from about late January 1999 to about February 2000. He committed no offences during this period which he described as the best time of his life. He was away from the influence of drugs. In about February 2000 he was arrested for breaching his parole. He remained in prison for about two months, being released on parole again in late April 2000. He returned to Walgett and worked on farms around the Walgett area. He was working with his father and lived firstly with his father and then with his sister.

14. In about January 2001 he came to Sydney to meet with other members of his family and to take his brother, who was being released from prison, home to Walgett. TJH ran into some old friends “and basically just got back in the drugs and that again”. He again became a regular user of drugs. Between February 2001 and his arrest he used drugs heavily. TJH said that his drug habit was out of control and he did the robberies to support that habit.

15. Initially the Crown brief served on TJH included a statement from a fingerprint expert identifying the fingerprints found in the TAB as those of a person other than TJH. In those circumstances he did not plead guilty. However when a further amended fingerprint report was served identifying the fingerprints at the scene of the TAB robbery as his, TJH, consequent upon advice from his counsel, decided to plead guilty. The Crown was advised as soon as possible and when TJH was arraigned he pleaded guilty thus eliminating the need for the Crown to embark upon costly trial preparations.

16. The judge said that it was “almost notorious with young Koori men that when they have been clean for some time outside Sydney and they go back to Redfern, temptation is in their way and it is not only temptation but there is considerable peer pressure on them to use drugs”.

17. The probation and parole officer wrote that TJH’s overall response to supervision has been poor. She records that since the age of fourteen he has been in and out of institutions and gaols. He began drinking alcohol and smoking cannabis at age eleven and has been using heroin since the age of fourteen. He left school at age fourteen without gaining his school certificate. Since then all his education has been completed whilst incarcerated. Most of his work history relates to employment in gaol and he has worked infrequently in the community. Whilst in gaol he has worked as an Aboriginal liaison officer/mentor in metal fabrication and in ground maintenance.

18. TJH told the officer that his life had become “a mess” and that he had been relieved to be arrested in order to remove himself from the lifestyle in which he had become enmeshed. The officer wrote:

“Despite Mr. Hickey’s extensive criminal history, he presented as remarkably well adjusted and accepting of his present situation. He is clearly accustomed to the gaol environment and to making constructive use of his time there, and has been placed in positions of trust by custodial staff”.

19. TJH expressed a desire to spend time in a structured rehabilitation program. That would be of benefit to him. TJH believed he was unable to prevent himself becoming involved in undesirable activity when living in Sydney, and especially Redfern. The officer thought that it may be useful to include in his parole conditions one prohibiting him from entering Redfern and/or Sydney unless for the purpose of attending Court.

20. The Acting Senior Education Officer, Metropolitan Remand and Reception Centre classified TJH as “being institutionalised”. He added:

“This is a sad situation as Mr. Hickey is an intelligent man who has educated himself whilst spending many years in Gaol…the main issue which brings Mr. Hickey back into gaol is drug use”.

21. The Aboriginal Alcohol and Other Drug Counsellor in her letter of 25 January 2002 wrote:

“It is my professional belief that Mr. Hickey is genuine about wanting change in his life and has proven that whilst at the MRCC. Mr. Hickey would now and in the future benefit from a Rehabilitation Program to continue acknowledging the issues and situations that have led him to be incarcerated”.

22. The Program Co-ordinator and Officer In Charge of the Lifestyles Unit at the MSPC have written a highly commendatory report on TJH. He was asked to stay on as mentor for the Young Offenders’ Program so valuable was his contribution to the adult program. A further report was also highly commendatory. It was recommended that TJH continue with his Alcohol and Other Drugs work and receive the ongoing support he needed for his rehabilitation.

23. Mr. R. Leonard, consulting psychologist, interviewed TJH for 2½ hours on 3 July 2002 made inquiries of those who had dealt with him and read his criminal history and the fact sheets. Mr. Leonard’s report covers TJH’s life history in some detail and his drug problems. TJH re-iterated his fear of re-offending if he returns to Sydney. Mr. Leonard assessed TJH as being of average intelligence and made these recommendations:

“Thomas’s substance abuse appears to be the main contributing factor to his previous criminal history and the offending behaviours that have brought him before the courts.

On release Thomas would benefit from a structured residential drug treatment program or mandatory attendance at an outpatient treatment in the Walgett area. He reported not being happy with “Orana Haven Aboriginal Corporation”, at Brewarrina, so it (is) suggested he make contact with the “Roy Thorne Substance Misuse Rehabilitation Centre” at Moree. They also supply access to employment and counselling services should they be needed. Close supervision by the Probation and Parole Service would be recommended.

Although happy to receive treatment anywhere but in Sydney, it is Thomas’s desire to live and work with his father in Walgett. He reported previous success at “staying off the drugs” when living and working there and combined with professional help, strict supervision and the support of the Aboriginal community, it would appear to be his best option”.

24. The judge found that TJH needed a long period on parole and would need support when he is released into the community. The judge noted TJH’s stated eagerness to undertake rehabilitation programs. The judge, in effect, treated TJH as being at the cross roads.

25. The judge referred to Pearce v. The Queen (1998) 194 CLR 610, especially paras 45 to 48 and continued:

“The Crown says that these are two discrete offences, however, Mr. Hickey was not challenged on his evidence that this was part of a continuous binge when he returned from his drug free existence in Walgett to Sydney and to continuous use of drugs. It seems to me to be appropriate to treat the two matters as part of the same episode. Both of the offences are similar and I have regard to the totality of the offences in fixing the appropriate sentence”.

26. The judge explained that but for the plea of guilty on each charge, he would have imposed a sentence of 6 years imprisonment. Because of the plea of guilty in each case the sentence was reduced in each instance to 4½ years imprisonment.

27. In sentencing JMH the judge referred to the guideline judgment in R v Henry (1999) 46 NSWLR 346 and observed that while Henry was specific to cases of armed robbery and did not apply directly to a case such as this, it did give an indication of the types of sentences that are appropriate. He added, “it is particularly relevant here because it applies to crimes where there is not a great deal of pre-meditation, as I have found here, and where the victims are put in fear”.

28. The Crown contended that a correct application of the principles in Henry on the basis that the offence was within Henry would have required the imposition of a penalty of not less than 5 years for the full term reduced by some amount less than 25 percent on account of the early plea. The Crown submitted that the offences for which TJH fell to be sentenced were considerably more serious than that the subject of the guideline. TJH was not a young offender and he had a substantial criminal history including a previous conviction for robbery. The degree of planning was not limited in that a car had previously been purchased for the purpose of the robbery at the National Bank at Warrawong, each of the participants went with a backpack and with part of his face hidden and the amount taken was not small. In its oral submissions the Crown contended that the judge was justified in following Henry but did not take into account that Henry includes a 10 per cent reduction for a late plea of guilty. The Crown submitted that the circumstances of each offence warranted a substantially greater sentence than that imposed and that the reduction allowed for the pleas of guilty was excessive.

29. The Crown submitted that the judge erred in holding that the offences were “part of a continuous binge”, pointing out that they were committed more than two months apart. It was submitted that the judge erred in fixing sentences of the same length for each offence and directing that such sentences be served wholly concurrently. This did not reflect a correct consideration of the issues of concurrency, cumulation and totality. The Crown further submitted that the judge gave undue weight to TJH’s subjective circumstances and did not impose sentences which reflected the objective seriousness of the offence. The Crown contended that the non-parole period was inadequate.

30. I do not accept that a 25 per cent reduction for the pleas of guilty was erroneous. One of the pleas of guilty was entered before the magistrate and the other was notified promptly after the amended fingerprint statement was served and entered upon arraignment. The plea of guilty on the bank robbery charge had further value because the Crown case on that charge was by no means overwhelming. In both instances lengthy trials were avoided.

31. The evidence does not support the Crown submission that the motor vehicle was purchased for the purpose of the bank robbery.

32. The Crown accepted in oral argument that the essence of its complaint was the total concurrency of the two sentences.

33. The written submissions of TJH state:

1. The aggregate sentence, in particular, represents an allowable outcome of the sentencing discretion, supported by assessments of total objective criminality and subjective factors which were open to the learned sentencing judge.

2. Asserted errors as are argued to the constituent sentences and application of the principles in R v Pearce (1998) HCA 57, 194 CLR 610 regarding the sentencing of multiple offences, are not such as would justify quashing the aggregate sentence and non-parole period.

3. Whilst the asserted errors in regard to totality are not conceded and whether or not the two constituent sentences within the aggregate sentence are tainted by errors in applying R v Pearce , it is submitted that the overall result is such that the Court would decline to intervene in the exercise of its discretion.

4. The Court would, moreover, be disinclined to intervene, both having regard to the absence of established error in the aggregate outcome and, in the event that error is established, having regard to the impact of double jeopardy in the circumstances of the matter.

34. In developing the submission in paragraph 2 TJH contended that a close temporal relationship remains a factor to be considered. It was submitted that no inherent error was apparent in the judge making the two sentences wholly concurrent.

35. TJH emphasised that his central proposition was that the total outcome even if there were constituent errors was a permissible one. In the course of analysing the sentences TJH submitted that while the sentence for the TAB offence was probably within the permissible range of sentences that sentence was on the high side. TJH accepted, by his senior counsel, that the sentence imposed for the bank robbery was well within the permissible range but not outside it. Reliance was then placed on the discretionary nature of the judgment when determining whether sentences should be wholly or partly cumulative or wholly or partly concurrent.

36. TJH submitted that whatever may be said about the sentence for the TAB offence the variation in the sentences of the two offenders, whose roles in the bank robbery were said by the judge to be virtually indistinguishable recognised that TJH was being sentenced for two offences.

37. There was no basis for making the sentences for the two robberies in company wholly concurrent. They occurred over two months apart. While it is true that they were committed under the influence of drugs and a continuing round of drug addiction that does not justify making the sentences wholly concurrent. Error has been established. To some extent the outcome of this appeal is related to the outcome of the appeal against the sentence imposed on JMH to which I now turn.

JMH

38. He was born on 18 February 1972. While he has a lengthy criminal record it is not as bad as that of TJH. Many of the offences are at the lower end of the criminal scale. He was dealt with by the Children’s Court in 1986, 1987, 1989 and 1990. He was committed to an institution. Thereafter he was frequently before the Local Court. He spent a number of comparatively short terms in prison as well as being fined and placed on recognizances. In February 1997 he was sentenced to twelve months imprisonment with a non-parole period of two months imprisonment. He committed a breach of parole and this led to revocation of his parole. On 18 October 1999 he was convicted of stealing from the person and sentenced in the Local Court to imprisonment for 20 months with a non-parole period of 15 months. On appeal the Sydney District Court, on 8 December 1999, confirmed the conviction and substituted a sentence of 7 months 25 days, thus effectively releasing him that day. On 4 August 2000 for entering a building/land with intent JMH was sentenced to 12 months imprisonment with a non-parole period of 6 months. Again, he breached his parole which was revoked.

39. In his evidence JMH said that when he was released in December 2000 he had to report to the Probation and Parole Service in Walgett. He reported about twice and then went back to Redfern and got back onto drugs with his ex girlfriend. He said that for the previous twelve years he had been on heroin and cocaine; he was taking one of these substances three to four times per day around the time of the robbery.

40. JMH said that after he served the balance of his parole period in gaol he went to his grandmother’s home in Dulwich Hill. TJH came and took him to Walgett. He did not like Walgett. He had grown up in Sydney and had never lived in the bush. He returned to Sydney and “got back on the drugs”.

41. He said that since he had been in custody on remand he had only been able to do one program as there was a shortage of programs and he had been shifted from gaol to gaol. He had been offered drugs in gaol but had not used drugs whilst in custody. In about 1998 or 1999 he had entered a rehabilitation centre having been told that there were Aboriginal people there. When he arrived at the centre there were no Aboriginal patients. He felt uncomfortable and isolated and left after a day. JMH stated that after his release he planned to go to Walgett to be with his father and his five sisters with all of whom he had a good relationship. He said that he wanted to be with his family and to avoid going back on drugs. His only contact in Sydney was an aunty who lived at Dulwich Hill. All his family was in Walgett.

42. JMH stated that he was very sorry for what he had done to the people in the bank. He affirmed the truth of what he had told the consulting psychologist.

43. Mr. R. Leonard, consulting psychologist, has furnished a detailed report. He relied on a 2½ hour interview with JMH at Junee Correctional Centre, and enquiries he made of a Redfern Aboriginal elder, staff at the Aboriginal Medical Service (Drug and Alcohol) Redfern, staff at Orana Haven Aboriginal Corporation, staff at Ray Thorne Rehabilitation Centre at Moree, an interview with TJH and on reading the fact sheets and JMH’s criminal history.

44. JMH left school in year 8. He did not like learning and had many discipline problems. He now regrets his lack of schooling. He can read and write adequately but wants to enrol in some English classes to improve his skills. The only work he has been engaged in was the “work for the dole” scheme. JMH described it as labouring work and enjoyed it.

45. JMH stated that he started using cannabis from age 13 years and soon became addicted. He started drinking from about age 15 and soon became an alcoholic. JMH stated that at age 19 he stopped drinking after a doctor warned him of the deteriorating effect of alcohol on his health. JMH told the psychologist that he realised that he had to stay out of Sydney on his release, to avoid the temptation of returning to his old lifestyle.

46. JMH expressed remorse to the psychologist for his actions in both offences, saying that the look of horror and fear on the people’s faces, especially on the older women had played regularly on his conscience. He added, “I needed that heroin and there was no other way to get the money”. JMH admitted that his drug habit has made him more aggressive at times.

47. JMH’s composite IQ score is 80 which places him in the lower end of the Below Average range. His cognitive abilities lie in the bottom 9% of the population.

48. Mr. Leonard wrote:

“Joseph is a man of below average intelligence. This profile is consistent with much of Joseph’s reported personal and offending history.

Joseph reported being raised in an environment that was not notably dysfunctional. However conflicting reports from his brother (and co offender) Thomas and Aboriginal elder Joyce Ingram, give witness to alcoholism and violence by his father, to his mother and siblings. Further to this his early initiation into substance abuse and criminal activity has continued and appears to have dominated his life to date.

RECOMMENDATIONS

Joseph’s substance abuse appears to be the main contributing factor to his previous criminal history and the offending behaviours that have brought him before the courts. Although he admits that his previous attitude to seeking assistance via any structured programme has been poor, he feels his grief over the sudden death of his mother, has helped him acknowledge that he needs such assistance to deal with his drug abuse behaviours.

To address his history of impulsive and aggressive behaviour Joseph has also showed a willingness to participate in the Violence Prevention Programme at the MSPC at Long Bay Correctional complex and to become involved in a structured drug and alcohol programme. Joseph reported already attending, on his own accord, some drug and alcohol lectures at Bathurst gaol.

On release Joseph would benefit from a structured residential drug treatment program such as the “Roy Thorne Substance Misuse Rehabilitation Centre”, Moree or the “Orana Haven Aboriginal Corporation”, Brewarrina. Attendance at either program, would be combined with close supervision by the Probation and Parole Service. Both treatment centres are based close to Walgett where Joseph desired to return, to live and work with his father and brother, Thomas. Joseph needs secure social support away from Sydney and the Redfern area, where he readily admits he would be tempted back into his drug and crime lifestyle”.

49. The judge said that JMH seemed to appreciate that he had a problem with drugs and to want to do something about it. The judge accepted that JMH had expressed remorse for his crimes. The judge accepted that there were some prospects of rehabilitation.

50. The judge pointed out as to the bank robbery that JMH was in the banking chamber and must be treated as an offender in the first degree. The judge noted that JMH was on parole at the time of the bank robbery. The judge referred to Henry in the terms earlier summarised. He started with a head sentence of five years and gave JMH the maximum discount of 25% for his early plea of guilty and bearing in mind that it was not an overwhelming Crown case. This led to a head sentence of 3 years 9 months. The judge found special circumstances in JMH not being permitted to attend his mother’s funeral, JMH being moved continuously around the gaol system of New South Wales, thus putting him at a disadvantage and making it more difficult for him to endure his term of imprisonment and in requiring a long period of supervision. There were also his prospects of rehabilitation.

51. The Crown pointed out that JMH was on a 2 year bond imposed by the Redfern Local Court on 30 August 2000 when both offences were committed.

52. The Crown submitted:

(a) A correct application of Henry on the basis that the offence was within the Henry guideline would have required the imposition of a penalty of not less than 5 years for the full term reduced by some amount less than 25% on account of the early plea.
(b) The offence of JMH was considerably more serious than that the subject of the Henry guideline. JMH was not a young offender and he had a substantial criminal history including robbery. (The robbery conviction was in 1990 and dealt with in the Children’s Court by a control order of about 2 months. More to the point was the steal from the person offence in 1999). The degree of planning was not limited. (This latter assertion cannot be sustained and is contrary to the judge’s findings). The amount taken was not small. The reduction for the plea of guilty was excessive.
(c) The offence was aggravated by JMH being on parole and on bonds.
(d) The sentence does not reflect an additional penalty for the offence of steal from the person being taken into account.
(e) The judge attached too much weight to the applicant’s subjective features and insufficient weight to the gravity of the offences.
(f) The sentence imposed was manifestly inadequate.

53. The judge did not slavishly follow Henry. He treated it as an indicator and was conscious of the differences between Henry and the offences of JMH. Nor was the reduction for the plea of guilty excessive, the plea being at an early stage and having considerable value having regard to the Crown case on the bank robbery not being overwhelming.

54. JMH submitted

(a) While the sentence was lenient it was within the permissible range.

(b) The head sentence of 3 years 9 months could not be said to be manifestly inadequate in that

(i) the offence was robbery in company not armed robbery

(ii) JMH H pleaded guilty in the Local Court

(iii) the robbery in company, whilst terrifying, was not professionally executed and the same remark applies to the offence of steal from the person

(iv) although JMH had an extensive criminal record, the longest period he had previously spent in custody was 10 months on remand. The record was not so serious as to suggest the sentence was manifestly inadequate. All but one of the previous offences had been dealt with in the Local Court

(v) MH is an Aboriginal person who suffered an upbringing punctuated by the use of alcohol and the infliction of violence

(vi) Since the age of thirteen JMH has abused illicit drugs and from the age of fifteen alcohol, and by the time of the offences was a heroin addict desperate for money. JMH was a desperate criminal not a cold and calculating one.

(c) There was no error in the discount of 25% for the early plea of guilty.

55. JMH submitted that the starting point of five years reflected, and correctly reflected, all the relevant considerations, for example, the gravity of the offence, the offence taken into account and the subjective features including remorse and hardship in custody but not the discount for the plea of guilty.

56. JMH also submitted that it was open to the judge to find special circumstances. I agree. It was pointed out that the allowance for special circumstances had resulted in a relatively small adjustment to the non-parole period. On a head sentence of 3 years 9 months, the usual non-parole period of three quarters would be 2 years 9¾ months. The non-parole period fixed was 2 years 6 months.

57. JMH further submitted that even if this Court thought that error had been demonstrated it should exercise its discretion not to intervene. The Court was also reminded of the principle of double jeopardy.

58. While this offence of robbery in company was a serious offence and the offence of steal from the person had to be taken into account I am of the opinion that, taking into account all relevant considerations the starting point of five years, while lenient, was either just within the lower end of the permissible range or so close to the lower end of the permissible range as not to warrant the intervention of this Court.

59. The discount of 25% was within the sound exercise of the judge’s discretion as was the finding of special circumstances and the small adjustment made on that account.

60. The Crown appeal against the sentence imposed on JMH should be dismissed.

TJH

61. I return to the sentences imposed on TJH. As earlier indicated, the judge erred in making the sentences for the two robberies in company wholly concurrent. However, there must be a degree of proportionality between the sentences imposed on the two brothers. Both were dealt with for the same robbery in company and each committed another serious offence. That of TJH was the more serious and was dealt with by way of a separate count in the Indictment and not by way of being taken into account. I take into account that the judge thought that TJH was at the cross-roads, that is, desiring to change his ways.

62. Nevertheless, there is no valid basis for this Court refraining from intervening. I bear in mind the principle of double jeopardy and that the sentence on the TAB robbery is at the upper end of the permissible range of sentences for that offence. I apply the principle of totality.

63. The sentences for the two robberies in company should be partially cumulative and partially concurrent. The effect of what I propose will be to add an additional 18 months to the head sentences and an additional 12 months to the non-parole period. The accumulation of the sentences is a further special circumstance. This will necessitate the non-parole period on sentence for the TAB robbery in company being reduced to 2½ years.

64. I propose the following orders:

1. Crown appeal against the sentence imposed on Joseph Michael Hickey dismissed.

2. (a) Crown appeal against the sentences imposed on Thomas John Hickey llowed; sentences quashed.

(b) In lieu of the sentences imposed Thomas John Hickey is sentenced as follows:


(i) On the robbery in company of the National Bank, Warrawong to imprisonment for 4 years 6 months commencing on 2 May 2001 with a non parole period of 3 years expiring on 1 May 2004.

(ii) On the TAB Burwood robbery in company to imprisonment for 4 years 6 months commencing on 2 November 2002 and expiring on 1 May 2007 with a non parole period of two years six months expiring on 1 May 2005.

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Last Modified: 05/01/2003